2. The first edition was published in 1789, in quarto.
3. A Fragment on Government, &c., reprinted in 1822.
4. Such as obligation, right power, possession, title, exemption, immunity, franchise, privilege, nullity, validity, and the like.
5. To the aggregate of them a common denomination has since been allotted—the rationale.
Chapter I.
6. Note by the Author, July 1822.
To this denomination has of late been added, or substituted, the greatest happiness or greatest felicity principle: this for shortness, instead of saying at length that principle which states the greatest happiness of all those whose interest is in question, as being the right and proper, and only right and proper and universally desirable, end of human action: of human action in every situation, and in particular in that of a functionary or set of functionaries exercising the powers of Government. The word utility does not so clearly point to the ideas of pleasure and pain as the words happiness and felicity do: nor does it lead us to the consideration of the number, of the interests affected; to the number, as being the circumstance, which contributes, in the largest proportion, to the formation of the standard here in question; the standard of right and wrong, by which alone the propriety of human conduct, in every situation, can with propriety be tried. This want of a sufficiently manifest connexion between the ideas of happiness and pleasure on the one hand, and the idea of utility on the other, I have every now and then found operating, and with but too much efficiency, as a bar to the acceptance, that might otherwise have been given, to this principle.
7. The word principle is derived from the Latin principium: which seems to be compounded of the two words primus, first, or chief, and cipium a termination which seems to be derived from capio, to take, as in mancipium, municipium; to which are analogous, auceps, forceps, and others. It is a term of very vague and very extensive signification: it is applied to any thing which is conceived to serve as a foundation or beginning to any series of operations: in some cases, of physical operations; but of mental operations in the present case.
The principle here in question may be taken for an act of the mind; a sentiment; a sentiment of approbation; a sentiment which, when applied to an action, approves of its utility, as that quality of it by which the measure of approbation or disapprobation bestowed upon it ought to be governed.
8. Interest is one of those words, which not having any superior genus, cannot in the ordinary way be defined.
9. 'The principle of utility, (I have heard it said) is a dangerous principle: it is dangerous on certain occasions to consult it.' This is as much as to say, what? that it is not consonant to utility, to consult utility: in short, that it is not consulting it, to consult it.
Addition by the Author, July 1822.
Not long after the publication of the Fragment on Government, anno 1776, in which, in the character of all-comprehensive and all-commanding principle, the principle of utility was brought to view, one person by whom observation to the above effect was made was Alexander Wedderburn, at that time Attorney or Solicitor General, afterwards successively Chief Justice of the Common Pleas, and Chancellor of England, under the successive titles of Lord Loughborough and Earl of Rosslyn. It was made—not indeed in my hearing, but in the hearing of a person by whom it was almost immediately communicated to me. So far from being self-contradictory, it was a shrewd and perfectly true one. By that distinguished functionary, the state of the Government was thoroughly understood: by the obscure individual, at that time not so much as supposed to be so: his disquisitions had not been as yet applied, with any thing like a comprehensive view, to the field of Constitutional Law, nor therefore to those features of the English Government, by which the greatest happiness of the ruling one with or without that of a favoured few, are now so plainly seen to be the only ends to which the course of it has at any time been directed. The principle of utility was an appellative, at that time employed by me, as it had been by others, to designate that which, in a more perspicuous and instructive manner, may, as above, be designated by the name of the greatest happiness principle. 'This principle (said Wedderburn) is a dangerous one.' Saying so, he said that which, to a certain extent, is strictly true: a principle, which lays down, as the only right and justifiable end of Government, the greatest happiness of the greatest number—how can it be denied to be a dangerous one? dangerous it unquestionably is, to every government which has for its actual end or object, the greatest happiness of a certain one, with or without the addition of some comparatively small number of others, whom it is matter of pleasure or accommodation to him to admit, each of them, to a share in the concern, on the footing of so many junior partners. Dangerous it therefore really was, to the interest—the sinister interest—of all those functionaries, himself included, whose interest it was, to maximize delay, vexation, and expense, in judicial and other modes of procedure, for the sake of the profit, extractible out of the expense. In a Government which had for its end in view the greatest happiness of the greatest number, Alexander Wedderburn might have been Attorney General and then Chancellor: but he would not have been Attorney General with £15,000 a year, nor Chancellor, with a peerage with a veto upon all justice, with £25,000 a year, and with 500 sinecures at his disposal, under the name of Ecclesiastical Benefices, besides et cæteras.
Chapter II.
10. Ascetic is a term that has been sometimes applied to Monks. It comes from a Greek word which signifies exercise. The practices by which Monks sought to distinguish themselves from other men were called their Exercises. These exercises consisted in so many contrivances they had for tormenting themselves. By this they thought to ingratiate themselves with the Deity. For the Deity, said they, is a Being of infinite benevolence: now a Being of the most ordinary benevolence is pleased to see others make themselves as happy as they can: therefore to make ourselves as unhappy as we can is the way to please the Deity. If any body asked them, what motive they could find for doing all this? Oh! said they, you are not to imagine that we are punishing ourselves for nothing: we know very well what we are about. You are to know, that for every grain of pain it costs us now, we are to have a hundred grains of pleasure by and by. The case is, that God loves to see us torment ourselves at present: indeed he has as good as told us so. But this is done only to try us, in order just to see how we should behave: which it is plain he could not know, without making the experiment. Now then, from the satisfaction it gives him to see us make ourselves as unhappy as we can make ourselves in this present life, we have a sure proof of the satisfaction it will give him to see us as happy as he can make us in a life to come.
11. The following Note was first printed in January 1789.
It ought rather to have been styled, more extensively, the principle of caprice. Where it applies to the choice of actions to be marked out for injunction or prohibition, for reward or punishment, (to stand, in a word, as subjects for obligations to be imposed,) it may indeed with propriety be termed, as in the text, the principle of sympathy and antipathy. But this appellative does not so well apply to it, when occupied in the choice of the events which are to serve as sources of title with respect to rights: where the actions prohibited and allowed the obligations and rights, being already fixed, the only question is, under what circumstances a man is to be invested with the one or subjected to the other? from what incidents occasion is to be taken to invest a man, or to refuse to invest him, with the one, or to subject him to the other? In this latter case it may more appositely be characterized by the name of the phantastic principle. Sympathy and antipathy are affections of the sensible faculty. But the choice of titles with respect to rights, especially with respect to proprietary rights, upon grounds unconnected with utility, has been in many instances the work not of the affections but of the imagination.
When, in justification of an article of English Common Law calling uncles to succeed in certain cases in preference to fathers, Lord Coke produced a sort of ponderosity he had discovered in rights, disqualifying them from ascending in a straight line, it was not that he loved uncles particularly, or hated fathers, but because the analogy, such as it was, was what his imagination presented him with, instead of a reason, and because, to a judgment unobservant of the standard of utility, or unacquainted with the art of consulting it, where affection is out of the way, imagination is the only guide.
When I know not what ingenious grammarian invented the proposition Delegatus non potest delegare, to serve as a rule of law, it was not surely that he had any antipathy to delegates of the second order, or that it was any pleasure to him to think of the ruin which, for want of a manager at home, may befall the affairs of a traveller whom an unforeseen accident has deprived of the object of his choice: it was, that the incongruity, of giving the same law to objects so contrasted as active and passive are, was not to be surmounted, and that -atus chimes, as well as it contrasts, with -are.
When that inexorable maxim, (of which the dominion is no more to be defined, than the date of its birth, or the name of its father, is to be found,) was imported from England for the government of Bengal, and the whole fabric of judicature was crushed by the thunders of ex post facto justice, it was not surely that the prospect of a blameless magistracy perishing in prison afforded any enjoyment to the unoffended authors of their misery; but that the music of the maxim, absorbing the whole imagination, had drowned the cries of humanity along with the dictates of common sense.* Fiat Justitia, ruat cœlum, says another maxim, as full of extravagance as it is of harmony: Go heaven to wreck—so justice be but done:—and what is the ruin of kingdoms, in comparison of the wreck of heaven?
So again, when the Prussian chancellor, inspired with the wisdom of I know not what Roman sage, proclaimed in good Latin, for the edification of German ears, Servitus servitutis non datur, [Cod. Fred. tom. ii. par. 2. liv. 2. tit. x. § 6. p. 308.] it was not that he had conceived any aversion to the life-holder who, during the continuance of his term, should wish to gratify a neighbour with a right of way or water, or to the neighbour who should wish to accept of the indulgence; but that, to a jurisprudential ear, -tus -tutis sound little less melodious than -atus -are. Whether the melody of the maxim was the real reason of the rule, is not left open to dispute: for it is ushered in by the conjunction quia, reason's appointed harbinger: quia servitus servitutis non datur.
Neither would equal melody have been produced, nor indeed could similar melody have been called for, in either of these instances, by the opposite provision: it is only when they are opposed to general rules, and not when by their conformity they are absorbed in them, that more specific ones can obtain a separate existence. Delegatus potest delegare, and Servitus servitutis datur, provisions already included under the general adoption of contracts, would have been as unnecessary to the apprehension and the memory, as, in comparison of their energetic negatives, they are insipid to the ear.
Were the inquiry diligently made, it would be found that the goddess of harmony has exercised more influence, however latent, over the dispensations of Themis, than her most diligent historiographers, or even her most passionate panegyrists, seem to have been aware of. Every one knows, how, by the ministry of Orpheus, it was she who first collected the sons of men beneath the shadow of the sceptre: yet, in the midst of continual experience, men seem yet to learn, with what successful diligence she has laboured to guide it in its course. Every one knows, that measured numbers were the language of the infancy of law: none seem to have observed with what imperious sway they have governed her maturer age. In English jurisprudence in particular, the connexion betwixt law and music, however less perceived than in Spartan legislation, is not perhaps less real nor less close. The music of the Office, though not of the same kind, is not less musical in its kind, than the music of the Theatre; that which hardens the heart, than that which softens it:—sostenutos as long, cadences as sonorous; and those governed by rules, though not yet promulgated, not less determinate. Search indictments, pleadings, proceedings in chancery, conveyances: whatever trespasses you may find against truth or common sense you will find none against the laws of harmony. The English Liturgy justly as this quality has been extolled in that sacred office, possesses not a greater measure of it, than is commonly to be found in an English Act of Parliament. Dignity, simplicity, brevity, precision, intelligibility, possibility of being retained or so much as apprehended, every thing yields to Harmony. Volumes might be filled, shelves loaded, with the sacrifices that are made to this insatiate power. Expletives, her ministers in Grecian poetry are not less busy, though in different shape and bulk, in English legislation: in the former, they are monosyllables:** in the latter, they are whole lines.***
To return to the principle of sympathy and antipathy: a term preferred at first, on account of its impartiality, to the principle of caprice. The choice of an appellative, in the above respects too narrow, was owing to my not having, at that time, extended my views over the civil branch of law, any otherwise than as I had found it inseparably involved in the penal. But when we come to the former branch, we shall see the phantastic principle making at least as great a figure there, as the principle of sympathy and antipathy in the latter.
In the days of Lord Coke, the light of utility can scarcely be said to have as yet shone upon the face of Common Law. If a faint ray of it, under the name of the argumentum ab inconvenienti, is to be found in a list of about twenty topics exhibited by that great lawyer as the co-ordinate leaders of that all-perfect system, the admission, so circumstanced, is as sure a proof of neglect, as, to the statues of Brutus and Cassius, exclusion was a cause of notice. It stands, neither in the front, nor in the rear, nor in any post of honour; but huddled in towards the middle, without the smallest mark of preference. [Coke, Littleton, II. a.] Nor is this Latin inconvenience by any means the same thing with the English one. It stands distinguished from mischief: and because by the vulgar it is taken for something less bad, it is given by the learned as something worse. The law prefers a mischief to an inconvenience, says an admired maxim, and the more admired, because as nothing is expressed by it, the more is supposed to be understood.
Not that there is any avowed, much less a constant opposition, between the prescriptions of utility and the operations of the common law: such constancy we have seen to be too much even for ascetic fervor. From time to time instinct would unavoidably betray them into the paths of reason: instinct which, however it may be cramped, can never be killed by education. The cobwebs spun out of the materials brought together by 'the competition of opposite analogies,' can never have ceased being warped by the silent attraction of the rational principle: though it should have been, as the needle is by the magnet, without the privity of conscience.
* Additional Note by the Author, July 1822.
Add, and that the bad system, of Mahometan and other native law was to be put down at all events, to make way for the inapplicable and still more mischievous system of English Judge-made law, and, by the hand of his accomplice Hastings, was to be put into the pocket of Impey—Importer of this instrument of subversion, £8,000 a-year contrary to law, in addition to the £8,000 a-year lavished upon him, with the customary profusion, by the hand of law.—See the Account of the transaction in Mill's British India.
To this Governor a statue is erecting by a vote of East India Directors and Proprietors: on it should be inscribed—Let it but put money into our pockets, no tyranny too flagitious to be worshipped by us.
To this statue of the Arch-malefactor should be added, for a companion, that of the long-robed accomplice: the one lodging the bribe in the hand of the other. The hundred millions of plundered and oppressed Hindoos and Mahometans pay for the one: a Westminster Hall subscription might pay for the other.
What they have done for Ireland with her seven millions of souls, the authorized deniers and perverters of justice have done for Hindostan with her hundred millions. In this there is nothing wonderful. The wonder is—that, under such institutions, men, though in ever such small number, should be found, whom the view of the injustices which, by English Judge-made law, they are compelled to commit, and the miseries they are thus compelled to produce, deprive of health and rest. Witness the Letter of an English Hindostan Judge, Sept. 1, 1819, which lies before me. I will not make so cruel a requital for his honesty, as to put his name in print: indeed the House of Commons' Documents already published leave little need of it.
** 
*** And be it further enacted by the authority aforesaid, that—Provided always, and it is hereby further enacted and declared that—&c. &c.
12. It is curious enough to observe the variety of inventions men have hit upon, and the variety of phrases they have brought forward, in order to conceal from the world, and, if possible, from themselves, this very general and therefore very pardonable self-sufficiency.
12. One man says, he has a thing made on purpose to tell him what is right and what is wrong; and that it is called a moral sense: and then he goes to work at his ease, and says, such a thing is right, and such a thing is wrong—why? 'because my moral sense tells me it is.'
12. Another man comes and alters the phrase: leaving out moral, and putting in common, in the room of it. He then tells you, that his common sense teaches him what is right and wrong, as surely as the other's moral sense did: meaning by common sense, a sense of some kind or other, which he says, is possessed by all mankind: the sense of those, whose sense is not the same as the author's, being struck out of the account as not worth taking. This contrivance does better than the other, for a moral sense being a new thing, a man may feel about him a good while without being able to find it out: but common sense is as old as the creation, and there is no man but would be ashamed to be thought not to have as much of it as his neighbours. It has another great advantage: by appearing to share power, it lessens envy: for when a man gets up upon this ground, in order to anathematize those who differ from him, it is not by a sic volo sic jubeo, but by a velitis jubeatis.
12. Another man comes, and says, that as to a moral sense indeed, he cannot find that he has any such thing: that however he has an understanding, which will do quite as well. This understanding, he says, is the standard of right and wrong: it tells him so and so. All good and wise men understand as he does: if other men's understandings differ in any point from his, so much the worse for them: it is a sure sign they are either defective or corrupt.
12. Another man says, that there is an eternal and immutable Rule of Right: that that rule of right dictates so and so: and then he begins giving you his sentiments upon any thing that comes uppermost: and these sentiments (you are to take for granted) are so many branches of the eternal rule of right.
12. Another man, or perhaps the same man (it's no matter) says, that there are certain practices conformable, and others repugnant, to the Fitness of Things; and then he tells you, at his leisure, what practices are conformable and what repugnant: just as he happens to like a practice or dislike it.
12. A great multitude of people are continually talking of the Law of Nature; and then they go on giving you their sentiments about what is right and what is wrong: and these sentiments, you are to understand, are so many chapters and sections of the Law of Nature.
12. Instead of the phrase, Law of Nature, you have sometimes, Law of Reason, Right Reason, Natural Justice, Natural Equity, Good Order. Any of them will do equally well. This latter is most used in politics. The three last are much more tolerable than the others, because they do not very explicitly claim to be any thing more than phrases: they insist but feebly upon the being looked upon as so many positive standards of themselves, and seem content to be taken, upon occasion, for phrases expressive of the conformity of the thing in question to the proper standard, whatever that may be. On most occasions, however, it will be better to say utility: utility is clearer, as referring more explicitly to pain and pleasure.
12. We have one philosopher, who says, there is no harm in any thing in the world but in telling a lie: and that if, for example, you were to murder your own father, this would only be a particular way of saying, he was not your father. Of course, when this philosopher sees any thing that he does not like, he says, it is a particular way of telling a lie. It is saying, that the act ought to be done, or may be done, when, in truth, it ought not to be done.
12. The fairest and openest of them all is that sort of man who speaks out, and says, I am of the number of the Elect: now God himself takes care to inform the Elect what is right: and that with so good effect, and let them strive ever so, they cannot help not only knowing it but practicing it. If therefore a man wants to know what is right and what is wrong, he has nothing to do but to come to me.
12. It is upon the principle of antipathy that such and such acts are often reprobated on the score of their being unnatural: the practice of exposing children, established among the Greeks and Romans, was an unnatural practice. Unnatural, when it means any thing, means unfrequent: and there it means something; although nothing to the present purpose. But here it means no such thing: for the frequency of such acts is perhaps the great complaint. It therefore means nothing; nothing, I mean, which there is in the act itself. All it can serve to express is, the disposition of the person who is talking of it: the disposition he is in to be angry at the thoughts of it. Does it merit his anger? Very likely it may: but whether it does or no is a question, which, to be answered rightly, can only be answered upon the principle of utility.
Unnatural, is as good a word as moral sense, or common sense; and would be as good a foundation for a system. Such an act is unnatural; that is, repugnant to nature: for I do not like to practice it: and, consequently, do not practise it. It is therefore repugnant to what ought to be the nature of every body else.
The mischief common to all these ways of thinking and arguing (which, in truth, as we have seen, are but one and the same method, couched in different forms of words) is then serving as a cloke, and pretense, and aliment, to despotism: if not a despotism in practice, a despotism however in disposition: which is but too apt, when pretense and power offer, to show itself in practice. The consequence is, that with intentions very commonly of the purest kind, a man becomes a torment either to himself or his fellow-creatures. If he be of the melancholy cast, he sits in silent grief, bewailing their blindness and depravity: if of the irascible, he declaims with fury and virulence against all who differ from him; blowing up the coals of fanaticism, and branding with the charge of corruption and insincerity, every man who does not think, or profess to think, as he does.
If such a man happens to possess the advantages of style, his book may do a considerable deal of mischief before the nothingness of it is understood.
These principles, if such they can be called, it is more frequent to see applied to morals than to politics: but their influence extends itself to both. In politics, as well as morals, a man will be at least equally glad of a pretense for deciding any question in the manner that best pleases him without the trouble of inquiry. If a man is an infallible judge of what is right and wrong in the actions of private individuals, why not in the measures to be observed by public men in the direction of those actions? accordingly (not to mention other chimeras) I have more than once known the pretended law of nature set up in legislative debates, in opposition to arguments derived from the principle of utility.
'But is it never, then, from any other considerations than those of utility, that we derive our notions of right and wrong?' I do not know: I do not care. Whether a moral sentiment can be originally conceived from any other source than a view of utility, is one question: whether upon examination and reflection it can, in point of fact, be actually persisted in and justified on any other ground, by a person reflecting within himself, is another: whether in point of right it can properly be justified on any other ground, by a person addressing himself to the community, is a third. The two first are questions of speculation: it matters not, comparatively speaking, how they are decided. The last is a question of practice: the decision of it is of as much importance as that of any can be.
'I feel in myself,' (say you) 'a disposition to approve of such or such an action in a moral view: but this is not owing to any notions I have of its being a useful one to the community. I do not pretend to know whether it be an useful one or not: it may be, for aught I know, a mischievous one.' 'But is it then,' (say I) 'a mischievous one? examine; and if you can make yourself sensible that it is so, then, if duty means any thing, that is, moral duty, is your duty at least to abstain from it: and more than that, if it is what lies in your power, and can be done without too great a sacrifice, to endeavour to prevent it. It is not your cherishing the notion of it in your bosom, and giving it the name of virtue, that will excuse you.'
'I feel in myself,' (say you again) 'a disposition to detest such or such an action in a moral view; but this is not owing to any notions I have of its being a mischievous one to the community. I do not pretend to know whether it be a mischievous one or not: it may be not a mischievous one: it may be, for aught I know, an useful one.'—'May it indeed', (say I) 'an useful one? but let me tell you then, that unless duty, and right and wrong, be just what you please to make them, if it really be not a mischievous one, and any body has a mind to do it, it is no duty of yours, but, on the contrary, it would be very wrong in you, to take upon you to prevent him: detest it within yourself as much as you please; that may be a very good reason (unless it be also a useful one) for your not doing it yourself: but if you go about, by word or deed, to do any thing to hinder him, or make him suffer for it, it is you, and not he, that have done wrong: it is not your setting yourself to blame his conduct, or branding it with the name of vice, that will make him culpable, or you blameless. Therefore, if you can make yourself content that he shall be of one mind, and you of another, about that matter, and so continue, it is well: but if nothing will serve you, but that you and he must needs be of the same mind, I'll tell you what you have to do: it is for you to get the better of your antipathy, not for him to truckle to it.'
13. King James the First of England had conceived a violent antipathy against Arians: two of whom he burnt.* This gratification he procured himself without much difficulty: the notions of the times were favourable to it. He wrote a furious book against Vorstius, for being what was called an Arminian: for Vorstius was at a distance. He also wrote a furious book, called 'A Counterblast to Tobacco,' against the use of that drug, which Sir Walter Raleigh had then lately introduced. Had the notions of the times co-operated with him, he would have burnt the Anabaptist and the smoker of tobacco in the same fire. However he had the satisfaction of putting Raleigh to death afterwards, though for another crime.
Disputes concerning the comparative excellence of French and Italian music have occasioned very serious bickerings at Paris. One of the parties would not have been sorry (says Mr. D'Alembert**) to have brought government into the quarrel. Pretences were sought after and urged. Long before that, a dispute of like nature, and of at least equal warmth, had been kindled at London upon the comparative merits of two composers at London; where riots between the approvers and disapprovers of a new play are, at this day, not unfrequent. The ground of quarrel between the Big-endians and the Little-endians in the fable, was not more frivolous than many an one which has laid empires desolate. In Russia, it is said, there was a time when some thousands of persons lost their lives in a quarrel, in which the government had taken part, about the number of fingers to be used in making the sign of the cross. This was in days of yore: the ministers of Catherine II. are better instructed*** than to take any other part in such disputes, than that of preventing the parties concerned from doing one another a mischief.
* Hume's Hist. vol. 6.
** Melanges Essai sur la Liberté de la Musique.
*** Instruct. Art. 474, 475, 476.
14. See ch. xvi. [Division], par. 42, 44.
15. The principle of theology refers every thing to God's pleasure. But what is God's pleasure? God does not, he confessedly does not now, either speak or write to us. How then are we to know what is his pleasure? By observing what is our own pleasure, and pronouncing it to be his. Accordingly, what is called the pleasure of God, is and must necessarily be (revelation apart) neither more nor less than the good pleasure of the person whoever he be, who is pronouncing what he believes, or pretends, to be God's pleasure. How know you it to be God's pleasure that such or such an act should be abstained from? whence come you even to suppose as much? 'Because the engaging in it would, I imagine, be prejudicial upon the whole to the happiness of mankind;' says the partizan of the principle of utility: 'Because the commission of it is attended with a gross and sensual, or at least with a trifling and transient satisfaction;' says the partizan of the principle of asceticism: 'Because I detest the thoughts of it; and I cannot, neither ought I to be called upon to tell why;' says he who proceeds upon the principle of antipathy. In the words of one or other of these must that person necessarily answer (revelation apart) who professes to take for his standard the will of God.
Chapter III.
16. Sanctio, in Latin was used to signify the act of binding, and, by a common grammatical transition, any thing which serves to bind a man: to wit, to the observance of such or such a mode of conduct. According to a Latin grammarian,* the import of the word is derived by rather a far-fetched process (such as those commonly are, and in a great measure indeed must be, by which intellectual ideas are derived from sensible ones) from the word sanguis, blood: because, among the Romans, with a view to inculcate into the people a persuasion that such or such a mode of conduct would be rendered obligatory upon a man by the force of what I call the religious sanction (that is, that he would be made to suffer by the extraordinary interposition of some superior being, if he failed to observe the mode of conduct in question) certain ceremonies were contrived by the priests: in the course of which ceremonies the blood of victims was made use of.
A Sanction then is a source of obligatory powers or motives: that is, of pains and pleasures; which, according as they are connected with such or such modes of conduct, operate, and are indeed the only things which can operate, as motives. See Chap. x. [Motives].
* Servius. See Ainsworth's Dict. Ad verbum Sanctio.
17. Better termed popular, as more directly indicative of its constituent cause; as likewise of its relation to the more common phrase public opinion, in French opinion publique, the name there given to that tutelary power, of which of late so much is said, and by which so much is done. The latter appellation is however unhappy and inexpressive; since if opinion is material, it is only in virtue of the influence it exercises over action, through the medium of the affections and the will.
18. A suffering conceived to befall a man by the immediate act of God, as above, is often, for shortness' sake, called a judgment: instead of saying, a suffering inflicted on him in consequence of a special judgment formed, and resolution thereupon taken, by the Deity.
19. See ch. xiii. [Cases unmeet] par. 2. note.
Chapter IV.
20. These circumstances have since been denominated elements or dimensions of value in a pleasure or a pain.
Not long after the publication of the first edition, the following memoriter verses were framed, in the view of lodging more effectually, in the memory, these points, on which the whole fabric of morals and legislation may be seen to rest.
-
Intense, long, certain, speedy, fruitful, pure—
Such marks in pleasures and in pains endure.
Such pleasures seek if private be thy end:
If it be public, wide let them extend.
Such pains avoid, whichever be thy view:
If pains must come, let them extend to few.
Chapter V.
21. The catalogue here given, is what seemed to be a complete list of the several simple pleasures and pains of which human nature is susceptible: insomuch, that if, upon any occasion whatsoever, a man feels pleasure or pain, it is either referable at once to some one or other of these kinds, or resolvable into such as are. It might perhaps have been a satisfaction to the reader, to have seen an analytical view of the subject, taken upon an exhaustive plan, for the purpose of demonstrating the catalogue to be what it purports to be, a complete one. The catalogue is in fact the result of such an analysis which, however, I thought it better to discard at present as being of too metaphysical a cast, and not strictly within the limits of this design. See ch. xiii. [Cases unmeet], par. 2. Note.
22. There are also pleasures of novelty, excited by the appearance of new ideas: these are pleasures of the imagination. See infra xiii.
23. For instance, the pleasure of being able to gratify the sense of hearing, by singing, or performing upon any musical instrument. The pleasure thus obtained, is a thing superadded to, and perfectly distiguishable from, that which a man enjoys from hearing another person perform in the same manner.
26. In contradistinction to these, all other pleasures may be termed pleasures of enjoyment.
27. The pleasure of the sexual sense seems to have no positive pain to correspond to it: it has only a pain of privation, or pain of the mental class, the pain of unsatisfied desire. If any positive pain of body result from the want of such indulgence, it belongs to the head of pains of disease.
28. The pleasures of novelty have no positive pains corresponding to them. The pain which a man experiences when he is in the condition of not knowing what to do with himself, that pain, which in French is expressed by a single word ennui, is a pain of privation: a pain resulting from the absence, not only of all the pleasures of novelty, but of all kinds of pleasure whatsoever.
The pleasures of wealth have also no positive pains corresponding to them: the only pains opposed to them are pains of privation. If any positive pains result from the want of wealth, they are referable to some other class of positive pains; principally to those of the senses. From the want of food, for instance, result the pains of hunger; from the want of clothing, the pains of cold; and so forth.
29. It may be a question, perhaps, whether this be a positive pain of itself, or whether it be nothing more than a pain of privation, resulting from the consciousness of a want of skill. It is, however, but a question of words, nor does it matter which way it be determined.
30. In as far as a man's fellow-creatures are supposed to be determined by any event not to regard him with any degree of esteem or good will, or to regard him with a less degree of esteem or good will than they would otherwise; not to do him any sorts of good offices, or not to do him so many good offices as they would otherwise; the pain resulting from such consideration may be reckoned a pain of privation: as far as they are supposed to regard him with such a degree of aversion or disesteem as to be disposed to do him positive ill offices, it may be reckoned a positive pain. The pain of privation, and the positive pain, in this case run one into another indistinguishably.
31. There seem to be no positive pains to correspond to the pleasures of power. The pains that a man may feel from the want or the loss of power in as far as power is distinguished from all other sources of pleasure, seem to be nothing more than pains of privation.
32. The positive pains of piety, and the pains of privation, opposed to the pleasures of piety, run one into another in the same manner as the positive pains of enmity, or of an ill name, do with respect to the pains of privation, opposed to the pleasures of amity, and those of a good name. If what is apprehended at the hands of God is barely the not receiving pleasure, the pain is of the privative class if, moreover, actual pain be apprehended, it is of the class of positive pains.
33. In contradistinction to these, all other pains may be termed pains of sufferance.
35. By this means the pleasures and pains of amity may be the more clearly distinguished from those of benevolence: and on the other hand, those of enmity from those of malevolence. The pleasures and pains of amity and enmity are of the self-regarding cast: those of benevolence and malevolence of the extra-regarding.
36. It would be a matter not only of curiosity, but of some use, to exhibit a catalogue of the several complex pleasures and pains, analyzing them at the same time into the several simple ones, of which they are respectively composed. But such a disquisition would take up too much room to be admitted here. A short specimen, however, for the purpose of illustration, can hardly be dispensed with.
The pleasures taken in at the eye and ear are generally very complex. The pleasures of a country scene, for instance, consist commonly, amongst others, of the following pleasures:
36. The simple pleasures of sight, excited by the perception of agreeable colours and figures, green fields, waving foliage, glistening water, and the like.
36. The simple pleasures of the ear, excited by the perceptions of the chirping of birds, the murmuring of waters, the rustling of the wind among the trees.
36. The pleasures of the smell, excited by the perceptions of the fragrance of flowers, of new-mown hay, or other vegetable substances, in the first stages of fermentation.
36. The agreeable inward sensation, produced by a brisk circulation of the blood, and the ventilation of it in the lungs by a pure air, such as that in the country frequently is in comparison of that which is breathed in towns.
36. The idea of the plenty, resulting from the possession of the objects that are in view, and of the happiness arising from it.
36. The idea of the innocence and happiness of the birds, sheep, cattle ,dogs, and other gentle or domestic animals.
36. The idea of the constant flow of health, supposed to be enjoyed by all these creatures: a notion which is apt to result from the occasional flow of health enjoyed by the supposed spectator.
36. The idea of gratitude, excited by the contemplation of the all-powerful and beneficent Being, who is looked up to as the author of these blessings.
These four last are all of them, in some measure at least, pleasures of sympathy.
The depriving a man of this group of pleasures is one of the evils apt to result from imprisonment; whether produced by illegal violence, or in the way of punishment, by appointment of the laws.
Chapter VI.
37. The exciting cause, the pleasure or pain produced by it, and the intention produced by such pleasure or pain in the character of a motive, are objects so intimately connected, that, in what follows, I fear I have not, on every occasion, been able to keep them sufficiently distinct. I thought it necessary to give the reader this warning; after which, should there be found any such mistakes, it is to be hoped they will not be productive of much confusion.
38. Thus, in physical bodies, the momentum of a ball put in motion by impulse, will be influenced by the circumstance of gravity: being in some directions increased, in others diminished by it. So in a ship, put in motion by the wind, the momentum and direction will be influenced not only by the attraction of gravity, but by the motion and resistance of the water, and several other circumstances.
39. An analytical view of all these circumstances will be given at the conclusion of the chapter: to which place it was necessary to refer it, as it could not well have been understood, till some of them had been previously explained.
To search out the vast variety of exciting or moderating causes, by which the degree or bias of a man's sensibility may be influenced, to define the boundaries of each, to extricate them from the entanglements in which they are involved, to lay the effect of each article distinctly before the reader's eye, is, perhaps, if not absolutely the most difficult task, at least one of the most difficult tasks, within the compass of moral physiology. Disquisitions on this head can never be completely satisfactory without examples. To provide a sufficient collection of such examples, would be a work of great labour as well as nicety: history and biography would need to be ransacked: a vast course of reading would need to be travelled through on purpose. By such a process the present work would doubtless have been rendered more amusing; but in point of bulk, so enormous that this single chapter would have been swelled into a considerable volume. Feigned cases, although they may upon occasion serve to render the general matter tolerably intelligible, can never be sufficient to render it palatable. On this therefore, as on so many other occasions, I must confine myself to dry and general instruction: discarding illustration, although sensible that without it instruction cannot manifest half its efficacy. The subject, however, is so difficult, and so new, that I shall think I have not ill succeeded, if without pretending to exhaust it, I shall have been able to mark out the principal points of view, and to put the matter in such amethod as may facilitate the researches of happier inquirers.
The great difficulty lies in the nature of the words, which are not, like pain and pleasure, names of homogeneous real entities, but names of various fictitious entities, for which no common genus is to be found: and which therefore, without a vast and roundabout chain of investigation, can never be brought under any exhaustive plan of arrangement, but must be picked up here and there as they happen to occur.
40. It may be thought, that in a certain degree of health, this negative account of the matter hardly comes up to the case. In a certain degree health, there is often such a kind of feeling diffused over the whole frame such a comfortable feel, or flow of spirits, as it is called, as may with propriety come under the head of positive pleasure. But without experiencing any such pleasurable feeling, if a man experience no painful one, he may be well enough said to be in health.
41. The most accurate measure that can be given of a man's strength, seems to be that which is taken from the weight or number of pounds and ounces he can lift with his hands in a given attitude. This indeed relates immediately only to his arms: but these are the organs of strength which are most employed; of which the strength corresponds with most exactness to the general state of the body with regard to strength; and in which the quantum of strength is easiest measured. Strength may accordingly be distinguished into general and particular.
Weakness is a negative term, and imports the absence of strength. It is, besides, a relative term, and accordingly imports the absence of such a quantity of strength as makes the share, possessed by the person in question, less than that of some person he is compared to. Weakness, when it is at such a degree as to make it painful for a man to perform the motions necessary to the going through the ordinary functions of life, such as to get up, to walk, to dress one's self, and so forth, brings the circumstance of health into question, and puts a man into that sort of condition in which he is said to be in ill health.
42. See B. I. Tit. [Irrep. Corp. Injuries].
44. When, for instance, having been determined, by the prospect of some inconvenience, not to disclose a fact, although he should be put to the rack, he perseveres in such resolution after the rack is brought into his presence, and even applied to him.
45. The facility with which children grow tired of their play-things, and throw them away, is an instance of unsteadiness: the perseverance with which a merchant applies himself to his traffic, or an author to his book may be taken for an instance of the contrary. It is difficult to judge of the quantity of pleasure or pain in these cases, but from the effects which it produces in the character of a motive: and even then it is difficult to pronounce, whether the change of conduct happens by the extinction of the old pleasure or pain, or by the intervention of a new one.
46. See Chapter V. [Pleasures and Pains].
47. See Chapter V. [Pleasures and Pains].
48. This is one reason why legislators in general like better to have married people to deal with than single; and people that have children than such as are childless. It is manifest that the stronger and more numerous a man's connexions in the way of sympathy are, the stronger is the hold which the law has upon him. A wife and children are so many pledges a man gives to the world for his good behaviour.
49. The characteristic circumstances whereby one man's frame of body or mind, considered at any given period, stands distinguished from that of another, have been comprised by metaphysicians and physiologists under the name idiosyncrasy, from 
, peculiar, and 
, composition.
50. Those who maintain, that the mind and the body are one substance may here object, that upon that supposition the distinction between frame of mind and frame of body is but nominal, and that accordingly there is no such thing as a frame of mind distinct from the frame of body. But granting, for argument-sake, the antecedent, we may dispute the consequence. For if the mind be but a part of the body, it is at any rate of a nature very different from the other parts of the body.
A man's frame of body cannot in any part of it undergo any considerable alteration without its being immediately indicated by phenomena discernible by the senses. A man's frame of mind may undergo very considerable alterations, his frame of body remaining the same to all appearance; that is, for any thing that is indicated to the contrary by phenomena cognizable to the senses: meaning those of other men.
52. The quantity of the sort of pain, which is called grief, is indeed hardly to be measured by any external indications. It is neither to be measured for instance, by the quantity of the tears, nor by the number of moments spent in crying. Indications rather less equivocal may, perhaps, be afforded by the pulse. A man has not the motions of his heart at command as he has those of the muscles of his face. But the particular significancy of these indications is still very uncertain. All they can express is, that the man is affected; they cannot express in what manner, nor from what cause. To an affection resulting in reality from such or such a cause, he may give an artificial colouring, and attribute it to such or such another cause. To an affection directed in reality to such or such a person as its object, he may give an artificial bias, and represent it as if directed to such or such another object. Tears of rage he may attribute to contrition. The concern he feels at the thoughts of a punishment that awaits him, he may impute to a sympathetic concern for the mischief produced by his offense.
A very tolerable judgment, however, may commonly be formed by a discerning mind, upon laying all the external indications exhibited by a man together, and at the same time comparing them with his actions.
A remarkable instance of the power of the will, over the external indications of sensibility, is to be found in Tacitus's story of the Roman soldier, who raised a mutiny in the camp, pretending to have lost a brother by the lawless cruelty of the General. The truth was, he never had had a brother.
53. The ways in which a religion may lessen a man's means, or augment his wants, are various. Sometimes it will prevent him from making a profit of his money: sometimes from setting his hand to labour. Sometimes it will oblige him to buy dearer food instead of cheaper: sometimes to purchase useless labour: sometimes to pay men for not labouring: sometimes to purchase trinkets, on which imagination alone has set a value: sometimes to purchase exemptions from punishment, or titles to felicity in the world to come.
54. This is far from being a visionary proposal, not reducible to practice. I speak from experience, having actually drawn up such an estimate, though upon the least commodious of the two plans, and before the several circumstances in question had been reduced to the precise number and order in which they are here enumerated. This is a part of the matter destined for another work. See ch. xiii. [Cases unmeet], par. 2. Note. There are some of these circumstances that bestow particular denominations on the persons they relate to: thus, from the circumstance of bodily imperfections, persons are denominated deaf, dumb, blind, and so forth: from the circumstance of insanity, idiots, and maniacs: from the circumstance of age, infants: for all which classes of persons particular provision is made in the Code. See B. I. tit. [Exemptions]. Persons thus distinguished will form so many articles in the catalogus personarum privilegiatarum. See Appendix. tit. [Composition].
55. As to a man's pecuniary circumstances, the causes on which those circumstances depend, do not come all of them under the same class. The absolute quantum of a man's property does indeed come under the same class with his pecuniary circumstances in general: so does the profit he makes from the occupation which furnishes him with the means of livelihood. But the occupation itself concerns his own person, and comes under the same head as his habitual amusements: as likewise his habits of expense: his connexions in the ways of profit and of burthen, under the same head as his connexions in the way of sympathy: and the circumstances of his present demand for money, and strength of expectation, come under the head of those circumstances relative to his person which regard his affections.
Chapter VII.
57. In certain cases the consequences of an act may be material by serving as evidences indicating the existence of some other material fact, which is even antecedent to the act of which they are the consequences: but even here, they are material only because, in virtue of such their evidentiary quality, they have an influence, at a subsequent period of time, in the production of pain and pleasure: for example, by serving as grounds for conviction, and thence for punishment. See tit. [Simple Falsehoods], verbo [material].
58. See B. I. tit. [Exemptions] and tit. [Extenuations].
59. The distinction between positive and negative acts runs through the whole system of offences, and sometimes makes a material difference with regard to their consequences. To reconcile us the better to the extensive and, as it may appear on some occasions, the inconsistent signification here given to the word act, it may be considered, 1. That in many cases, where no exterior or overt act is exercised, the state which the mind is in at the time when the supposed act is said to happen, is as truly and directly the result of the will, as any exterior act, how plain and conspicuous soever. The not revealing a conspiracy, for instance, may be as perfectly the act of the will, as the joining in it. In the next place, that even though the mind should never have had the incident in question in contemplation (insomuch that the event of its not happening should not have been so much as obliquely intentional) still the state the person's mind was in at the time when, if he had so willed, the incident might have happened, is in many cases productive of as material consequences; and not only as likely, but as fit to call for the interposition of other agents, as the opposite one. Thus when a tax is imposed, your not paying it is an act which at any rate must be punished in a certain manner whether you happened to think of paying it or not.
60. An exterior act is also called by lawyers overt.
61. The distinction is well known to the latter grammarians: it is with them indeed that it took its rise: though by them it has been applied rather to the names than to the things themselves. To verbs, signifying transitive acts, as here described, they have given the name of transitive verbs: those significative of intransitive acts they have termed intransitive. These last are still more frequently called neuter; that is, neither active nor passive. The appellation seems improper: since, instead of their being neither, they are both in one.
To the class of acts that are here termed intransitive, belong those which constitute the 3rd class in the system of offenses. See ch. [Division] and B. I. tit. [Self regarding Offenses].
62. Or in its migration, or in transitu.
63. These distinctions will be referred to in the next chapter: ch. viii. [Intentionality]: and applied to practice in B. I. tit. [Extenuations].
64. A habit, it should seem, can hardly in strictness be termed an aggregate of acts: acts being a sort of real archetypal entities, and habits a kind of fictitious entities or imaginary beings, supposed to be constituted by, or to result as it were out of, the former.
65. Distinctions like these come frequently in question in the course of Procedure.
66. Or entities. See B. II. tit. [Evidence], § [Facts].
67. The etymology of the word circumstance is perfectly characteristic of its import: circum stantia, things standing round: objects standing round a given object. I forget what mathematician it was that defined God to be a circle, of which the centre is every where, but the circumference no where. In like manner the field of circumstances, belonging to any act, may be defined a circle, of which the circumference is no where, but of which the act in question is the centre. Now then, as any act may, for the purpose of discourse, be considered as a centre, any other act or object whatsoever may be considered as of the number of those that are standing round it.
68. See B. II. tit. [Evidence], § [Facts].
69. The division may be farther illustrated and confirmed by the more simple and particular case of animal generation. To production corresponds paternity: to derivation, filiation: to collateral connexion, collateral consanguinity: to conjunct influence, marriage and copulation.
If necessary, it might be again illustrated by the material image of a chain, such as that which, according to the ingenious fiction of the ancients, is attached to the throne of Jupiter. A section of this chain should then be exhibited by way of specimen, in the manner of the diagram of a pedigree. Such a figure I should accordingly have exhibited, had it not been for the apprehension that an exhibition of this sort, while it made the subject a small matter clearer to one man out of a hundred, might, like the mathematical formularies we see sometimes employed for the like purpose, make it more obscure and formidable for the other ninety-nine.
70. The more remote a connexion of this sort is, of course the more obscure. It will often happen that a connexion, the idea of which would at first sight appear extravagant and absurd, shall be rendered highly probable, and indeed indisputable, merely by the suggestion of a few intermediate circumstances.
At Rome, 390 years before the Christian era, a goose sets up a cackling: two thousand years afterwards a king of France is murdered. To consider these two events, and nothing more, what can appear more extravagant than the notion that the former of them should have had any influence on the production of the latter? Fill up the gap, bring to mind a few intermediate circumstances, and nothing can appear more probable. It was the cackling of a parcel of geese, at the time the Gauls had surprised the Capitol, that saved the Roman commonwealth: had it not been for the ascendancy that commonwealth acquired afterwards over most of the nations of Europe, amongst others over France, the Christian religion, humanly speaking, could not have established itself in the manner it did in that country. Grant then, that such a man as Henry IV. would have existed, no man, however, would have had those motives, by which Ravaillac, misled by a mischievous notion concerning the dictates of that religion, was prompted to assassinate him.
71. See B. I. tit. [Crim. Circumstances].
72. See B. I. tit. [Justifications].
73. See B. I. tit. [Extenuations].
74. See B. I. tit. [Aggravations].
75. See B. I. tit. [Accessory Offences] and B. II. tit. [Evidence].
It is evidence that this analysis is equally applicable to incidents of a purely physical nature, as to those in which moral agency is concerned. If therefore it be just and useful here, it might be found not impossible, perhaps, to find some use for it in natural philosophy.
Chapter VIII.
76. On this occasion the words voluntary and involuntary are commonly employed. These, however, I purposely abstain from, on account of the extreme ambiguity of their signification. By a voluntary act is meant sometimes, any act, in the performance of which the will has had any concern at all; in this sense it is synonymous to intentional: sometimes such acts only, in the production of which the will has been determined by motives not of a painful nature; in this sense it is synonymous to unconstrained, or uncoerced: sometimes such acts only, in the production of which the will has been determined by motives, which, whether of the pleasurable or painful kind, occurred to a man himself, without being suggested by any body else; in this sense it is synonymous to spontaneous. The sense of the word involuntary does not correspond completely to that of the word voluntary. Involuntary is used in opposition to intentional and to unconstrained: but not to spontaneous. It might be of use to confine the signification of the words voluntary and involuntary to one single and very narrow case, which will be mentioned in the next note.
77. To render the analysis here given of the possible states of the mind in point of intentionality absolutely complete, it must be pushed to such a farther degree of minuteness, as to some eyes will be apt to appear trifling. On this account it seemed advisable to discard what follows, from the text to a place where any one who thinks proper may pass by it. An act of the body, when of the positive kind, is motion: now in motion there are always three articles to be considered: 1. The quantity of matter that moves: 2. The direction in which it moves: and, 3. The velocity with which it moved. Correspondent to these three articles, are so many modes of intentionality, with regard to an act, considered as being only in its first stage. To be completely unintentional, it must be unintentional with respect to every one of these three particulars. This is the case with those acts which alone are properly termed involuntary: acts, in the performance of which the will has no sort of share: such as the contraction of the heart and arteries.
Upon this principle, acts that are unintentional in their first stage, may be distinguished into such as are completely unintentional, and such as are incompletely unintentional: and these again may be unintentional, either in point of quantity of matter alone, in point of direction alone, in point of velocity alone, or in any two of these points together.
The example given further on may easily be extended to this part of the analysis, by any one who thinks it worth the while.
There seem to be occasions in which even these disquisitions, minute as they may appear, may not be without their use in practice. In the case of homicide, for example, and other corporal injuries, all the distinctions here specified may occur, and in the course of trial may, for some purpose or other, require to be brought to mind, and made the subject of discourse. What may contribute to render the mention of them pardonable, is the use that might possibly be made of them in natural philosophy. In the hands of an expert metaphysician, these, together with the foregoing chapter on human actions, and the section on facts in general, in title Evidence of the Book of Procedure, might, perhaps, be made to contribute something towards an exhaustive analysis of the possible varieties of mechanical inventions.
79. There is a difference between the case where an incident is altogether unintentional, and that in which, it being disjunctively intentional with reference to another, the preference is in favour of that other. In the first case, it is not the intention of the party that the incident in question should happen at all: in the latter case, the intention is rather that the other should happen: but if that cannot be, then that this in question should happen rather than that neither should, and that both, at any rate, should not happen.
All these are distinctions to be attended to in the use of the particle or: a particle of very ambiguous import, and of great importance in legislation. See Append. tit. [Composition].
81. See ch. vii. [Actions], par. 14.
Chapter IX.
82. See ch. vii. [Actions], par. 3.
83. See ch. vi. [Sensibility], par. 12.
84. See B. I. tit. [Extenuations].
85. See ch. xii. [Consequences].
86. See B. I. tit. [Theft] verbo [amenable].
87. Dolus, an virtus quis in hoste requirit?—Virgil.
——
.—Homer.
88. I pretend not here to give any determinate explanation of a set of words, of which the great misfortune is, that the import of them is confused and indeterminate. I speak only by approximation. To attempt to determine the precise import that has been given them by a hundredth pant of the authors that have used them, would be an endless task. Would any one talk intelligibly on this subject in Latin? let him throw out dolus altogether: let him keep culpa, for the purpose of expressing not the case itself, but the sentiment that is entertained concerning a case described by other means. For intentionality, let him coin a word boldly, and say intentionalitas: for unintentionality, non-intentionalitas. For unadvisedness, he has already the word inscitia; though the words imprudentia, inobservantia, were it not for the other senses they are used in, would do better: for unadvisedness coupled with heedlessness, let him say inscitia culpabilis for unadvisedness without heedlessness, inscitia inculpabilis: for mis-advisedness coupled with rashness, error culpabilis, error temerarius, or error cum temeritate: for mis-advisedness without rashness, error inculpabilis, error non-temerarius, or error sine temeritate.
It is not unfrequent likewise to meet with the phrase, malo animo: a phrase still more indeterminate, if possible, than any of the former. It seems to have reference either to intentionality, or to consciousness, or to the motive, or to the disposition, or to any two or more of these taken together; nobody can tell which; these being objects which seem to have never hitherto been properly distinguished and defined.
89. See ch. xiii. [Cases unmeet].
90. See B. I. tit. [Circumstancees influencing].
91. See B. I. tit. [Aggravations].